Supriyati v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 271/2022

[2022] HKCA 1422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 271 OF 2022

(ON APPEAL FROM HCAL NO 1038 OF 2019)

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Before:  Hon G Lam and Chow JJA in Court

Date of Written Submissions:  26 July 2022

Date of Judgment:  3 October 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 13 July 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 30 June 2022 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2017.

BACKGROUND

2.The Applicant is a national of Indonesia. She last entered Hong Kong on 26 March 2015 to work as a foreign domestic helper. Her employment contract was terminated prematurely in April 2016. She became an overstayer since 30 April 2016. She was arrested on 6 May 2017 for overstaying. She raised a non-refoulement claim in June 2017, alleging that if refouled, she would be at risk of being harmed by her family and a loan shark for being unable to repay debts owed by the family, and by Muslims in her country for being a lesbian. Details of the Applicant’s claim were summarised by the Judge at §§1-10 of the CALL-1 Form ([2022] HKCFI 1989).

3.By a Notice of Decision dated 30 November 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision to the Board. On 9 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §11-16 of the CALL-1 Form, as follows:

“[11] The Board accepted that her parents, brother and the loan shark had made threats to her and that her brother had assaulted her on some occasions. However, the Board doubted the truthfulness of the other crucial aspects of her claims. The Board doubted the genuineness of her fear as she had never made a claim for protection until after her arrest for overstaying.

[12] The Board did not accept that she suffered severe head injury from the attack by her brother. She said she had been advised to undergo surgery to remove the blood clots in her brain while she was hospitalised in Indonesia, but she refused out of fear of the surgery and lack of funds for the surgery. Her alleged injury is not supported by medical evidence whether from Indonesia or Hong Kong. The Board found it incredible that she would have refused a surgery to treat her life-threatening condition merely because of her fear of the operation. It also rejected her explanation that she could not pay for the surgery as she could have used the funds for arranging her employment in Hong Kong for the surgery instead. The fact that she never sought treatment in Hong Kong also undermined the credibility of her allegation. In any event, she admitted at the hearing that her condition was not serious. The Board, therefore, did not accept that she faced risks of harm that would exceed the required minimal level of severity. Furthermore, as four years had lapsed since she left Indonesia, the Board considered her fear of harm speculative and unreal.

[13] The Board found no evidence that the pain or suffering was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity for the government. It also found that the ill-treatment and suffering arose out of a private dispute between her and her parents and the loan shark and not any reasons protected by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.

[14] She had not produced any evidence to support her claim that she would be killed by Muslims for her sexual preference. The Board did not accept that she would face harm for being a lesbian because it was her own evidence that she had never experienced any harm or discrimination from Muslims in her country because of her sexual preference.

[15] After a comprehensive review of the available Country of Origin Information (COI), the Board found that state protection is available. Further, as an able-bodied woman with work experience as a foreign domestic helper, it would not be unreasonable to expect her to relocate to other parts of Indonesia outside her home village. Also, the Board did not accept her argument that she could not find employment outside her home village.

[16] Applying the law applicable to non-refoulement protection under the USM, the Board was not satisfied that the Applicant had proved her entitlement to protection under any of the applicable grounds under the USM and therefore dismissed her appeal.”

THE JUDGE’S DECISION

5.On 17 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

6.On 30 June 2022, the Judge gave a written decision, rejecting the Applicant’s five grounds of judicial review based on alleged procedural impropriety or misdirection in law. The Judge’s analyses were fully set out at §§19-29 of the CALL-1 Form, which it is not necessary to repeat in this judgment. At §30 of the CALL-1 Form, the Judge gave his overall conclusion as follows:

“Having rigorously examined the [Board’s] Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation. There was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The [Board’s] Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere unless such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

THIS APPEAL

7.In her Notice of Appeal dated 13 July 2022, the Applicant complained that the Director, the Board and the Judge failed to consider her “fear” properly. She repeated her claim that she would be in danger upon return to Indonesia. She also alleged that there was a failure to properly consider the conditions in her country, and said that the authorities in her country could not protect her from her enemies.

8.In her 1-page written submissions dated 26 July 2022, the Applicant argued that:

(1)  The Board and the Director failed to properly assess her claim, and the Judge failed to focus on her fear or observe the conditions in her country.

(2)  The Board and the Director failed to take into account relevant considerations or took into account irrelevant considerations, namely -

(a)  she would face real risk of harm and her life would be in danger upon refoulement;

(b)  her problem was genuine and her enemies still continued to threaten her life; and

(c)  she had been placed in severe mental distress as a result.

(3)  Her claim was not a personal or private dispute, and she would be in danger wherever she hid in her country.

DISCUSSION

9.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.The matters raised in the Applicant’s Notice of Appeal and written submissions are essentially repetitions of the basis of her non-refoulement claim. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 30 June 2022, and has failed to raise any viable ground of appeal against the Order.

12.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person